As former President Donald Trump and his allies spread baseless conspiracy theories about Democrats bringing in noncitizens to vote illegally, GOP state officials are escalating last-minute demands on the Biden administration to check the citizenship of voters on their state rolls.
In recent days, Florida, Texas and Ohio have each sued the U.S. Department of Homeland Security over the issue. They argue a longstanding data sharing program, which the federal government has offered states over the last dozen years for this purpose, is insufficient.
"The Biden-Harris Administration has refused to comply with the law and has failed to supply Texas with the required information necessary to secure the integrity of Texas elections," Texas Attorney General Ken Paxton said in a statement.
But with Election Day around the corner, the states' demands are coming far too late to be considered credible, according to election law experts and voting officials.
Instead, the lawsuits are "in service of a fraudulent narrative — which is the notion that widespread numbers of noncitizens are intentionally registering and voting — which is patent garbage," said Justin Levitt, a constitutional law professor at Loyola Law School who also served as an adviser on voting rights issues for the Biden administration.
Levitt said lawsuits filed right before an election usually request expedited review, but none of these suits did, indicating that the goal may be to publicize the issue rather than get a ruling quickly.
Kim Wyman — a Republican former secretary of state of Washington who also served as senior adviser for election security to DHS' Cybersecurity and Infrastructure Agency — agreed that the timing of the lawsuits seemed more like "posturing" and planning for post-election litigation.
"What I've seen in my experience of elections is that when a group or an organization or a person files a lawsuit related to an election this close to Election Day, they're really kind of putting a placeholder in," Wyman said.
Kenneth Parreno, an attorney with the nonprofit Protect Democracy that describes itself as "defeating the authoritarian threat," calls suits like these "zombies."
"These are lawsuits that are dead on arrival because they're meritless" Parreno said, adding that after the election, litigants could potentially "bring these claims back to life and point to them as a basis for challenging the outcome of the election and trying to stop the lawful transition of power."
An America First priority
Florida, Texas and Ohio are among several Republican-led states that recently asked the federal government to verify citizens on their voter rolls, though so far they are the only ones to have filed lawsuits.
America First Legal, an organization led by former Trump senior adviser Stephen Miller, sent letters to states over the summer with an "emergency action plan" that encouraged them to make such requests and said states could sue if DHS failed to respond. At least a half dozen states then sent letters with data requests to DHS' U.S. Citizenship and Immigration Services.
In a June press release, Miller, who is credited as the architect of Trump's immigration policies, claimed without citing evidence that Biden was "handing out voter registration forms to migrants" and there is a "direct effort to sabotage the 2024 election through potential mass illegal alien voting."
Finding citizenship data isn't easy
Everyone who registers to vote in federal elections must attest, under penalty of perjury, that they are U.S. citizens. Documented cases of noncitizens voting in federal races are incredibly rare, likely because those who try face the possibility of prison and deportation.
There is no database of all U.S. citizens. Election officials typically use a hodgepodge of different data sources to suss out whether their rolls are accurate and up-to-date.
Since 2012, the federal government has offered states the opportunity to use a federal immigration data system known as Systematic Alien Verification for Entitlements, or SAVE, as a tool for checking if a potential voter is a naturalized citizen, a noncitizen who has interacted with the federal government or someone who acquired U.S. citizenship after being born abroad.
SAVE does not include records for American citizens born in the U.S. or people who entered the country illegally and have remained off the radar of federal officials. Not all of the data is necessarily up to date. Searches cost $1.50 per query, and agencies can only search for people one at a time.
The system's burdensome quirks have long been a thorn in the side of voting officials, so its use has been fairly limited for elections.
Just 10 states are registered with U.S. Citizenship and Immigration Services to use the SAVE system for voting purposes, and even fewer have systems in place to use it regularly to clean up their voting lists. Four of the 10 states registered in the past few months. Some states that do not have a SAVE agreement for voting purposes check voter citizenship in other ways, such as by cross-checking data with the department of motor vehicles.
Georgia recently began doing regular SAVE searches of registered voters who had indicated in other interactions with the state that they were noncitizens. A recent audit yielded 20 suspected noncitizens on the rolls, out of 8.2 million registered voters (0.00024% of the state's list).
Florida has been using SAVE for elections since 2012 and Texas has been working with USCIS to gain access to it for voter list maintenance, according to court filings. Ohio's agreement began in July, and the state logged more than 20,000 queries.
The argument put forth by America First Legal, and echoed in state letters, however, is that SAVE is not a sufficient resource because it requires states to know an alien identification number or citizenship certificate number to query the system. The states are asking the federal government to offer checks based on first name, last name and date of birth of registered voters using a different system reserved for internal federal government use.
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With just weeks before Election Day, states made enormous requests. Texas asked the federal government to check 454,289 voters, and Indiana requested verification for 585,774, even though the states offered no reason to believe those voters may not be citizens.
Such checks would have to be done individually and manually by federal government employees and still would not yield a "definitive result," according to an official at the Department of Homeland Security, who spoke to NPR on background.
The director of U.S. Citizenship and Immigration Services, Ur Jaddou, responded on Oct. 10 to all states who had made requests, saying that the SAVE program "is the most secure and efficient way to reliably verify an individual's citizenship or immigration status," and said the agency "currently cannot offer an alternative process to any state."
Requests that missed the federal deadline
Both Florida and Texas sent their data requests to the federal government during a period in which federal law prohibits systematic purging of voters. Ohio's initial request was filed just before that period began.
During the 90-day "quiet period" before an election, states cannot use database matching to systematically remove voters from rolls.
The rule is to ensure that eligible citizens are not removed in error right before an election.
"States did not act in good faith months and months ago when systematic database matching might have been lawful depending on the way that they went about it," said Kate Huddleston, an attorney with Campaign Legal Center, which has sued states this election cycle for not observing the quiet period.
"Instead [they] are raising this really at the eleventh hour at a time when it would be unlawful to do exactly what they want to do," Huddleston said.
When asked about the timing of Texas' request given the 90-day rule, Alicia Pierce, a spokesperson for the Texas secretary of state, wrote in an email: "All voter list maintenance is being done in compliance with state and federal law."
Dan Lusheck, a spokesperson for the Ohio secretary of state, said the state began requesting information in the summer. "The Department failed to respond to several times, and ultimately waited until mid-October to reject the request. Their inaction determined the timing of the lawsuit."
Florida's Department of State did not respond to an NPR inquiry about that point.
A senior election official in a state that uses SAVE agreed that the timing of the requests and the lawsuits made clear the states were not serious in their efforts. The election official, who did not have permission to speak on the record about the issue, told NPR that voting administrators across the political spectrum have been frustrated with SAVE for years, but that this sort of "gamesmanship" is only meant to score political points, not improve voting lists.
"All these people, even the ones that are bringing the lawsuits, know full well that there aren't more than a handful of noncitizens registered to vote," said the official, who has worked for both Republican and Democratic administrations. "But they can make a lot of political hay by bringing it up now."
In the days after Florida filed its lawsuit, an analysis by the University of Washington's Center for an Informed Public found the announcement prompted the spread of misleading narratives on social media about noncitizens voting and the federal government's actions.
The voting official added they assumed the states suing are actually hoping to lose their cases, so they have something to point to should the election not go Donald Trump's way.
"The really sad truth is that in the deep, dark recesses of their brains, they're hoping they lose these cases so that they continue to have problems accessing that data and can use it as a political cudgel to make their point," the official said.
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